Back
2021 MarsdenLR 1251
HIGH COURT MALAYA KUALA LUMPUR
DATUK SERI SALAHUDDIN AYUB & ORS – Appellant
Versus
PERDANA MENTERI TAN SRI DATO MAHIADDIN MD YASIN & ANOR – Respondent
[Judicial Review No: WA-25-32-01-2021]
Emergency powers established under article 150 of the Federal Constitution and the Emergency (Essential Powers) Ordinance 2021 are constitutional, limiting grounds for judicial review against their declaration and enforcement.
Headnote:(A) Federal Constitution – Articles 4(1), 40, 43, 44, 71, 150(1), 150(2B), 150(3), 150(6), 150(8) – Emergency (Essential Powers) Ordinance 2021 – Challenges to the constitutionality of sections 11, 14, and 15 of the Ordinance dismissed as the applicants failed to establish a justiciable case regarding the powers conferred on the Executive during the emergency. (Paras 1-144)
(B) Judicial Review – Statutory Duty – The of application for leave under O 53 requires the applicant to demonstrate an arguable case of illegality, irrationality, or procedural impropriety. The applicants did not fulfill this requirement, and hence the application was deemed frivolous. (Paras 140-144)
Facts of the case: The applicants challenged the constitutionality of several sections of the Emergency (Essential Powers) Ordinance 2021, citing that they conflict with various articles of the Federal Constitution and undermine parliamentary functions. (Paras 1-39)
Findings of Court: The court found that articles 150(6) and (8) of the FC are valid and constitutional, preventing judicial review of the emergency proclamation and related ordinances. (Paras 142-144)
Issues: Whether the provisions in the Ordinance were unconstitutional; whether the court had jurisdiction to review the actions taken under the Ordinance; and the validity of mandamus orders sought against the Prime Minister. (Paras 63-142)
Ratio Decidendi: The court held that the emergency provisions do not allow for legislative functions to be suspended without adequate constitutional justification, but affirmed the constitutionality of the provisions. (Paras 142-144)
Result: Application for leave to commence judicial review dismissed.
JUDGMENT
Introduction
[1] The applicants apply for leave to commence Judicial Review (encl 1) pursuant to O 53 of the Rules of (ROC) 2012 vide notice of Application dated 26 January 2021 for the following reliefs:
(i) A declaration that s 14 of the Emergency (Essential Powers) Ordinance 2021 published in the Federal Government Gazette PU(A) 12/2021 on 14 January 2021 (Ordinance) is unconstitutional as being inconsistent with and in breach of inter aliaarts 44, 150(3), 150(5) of the Federal Constitution ( FC ) and is null and void;
(ii) A declaration that s 15 of the Ordinance is unconstitutional as being inconsistent with and in breach of inter aliaarts 71, 150(2C) and the Eighth Schedule of the FC and is null and void;
(iii) A declaration that s 11(a) of the Ordinance is unconstitutional as it insulates the Executive from the provisions of inter aliaart 43 of the FC and is null and void;
(iv) A declaration that s 1l(b) of the Ordinance is unconstitutional as it conflicts with inter aliaart 71 and the Eighth Schedule of the FC and is null and void;
(v) Consequent to prayers (i) to (iv) above, a declaration that ss 11, 14 and 15 of the Ordinance are invalid, null and void and of no legal force and effect;
(vi) A declaration that art 150(8) of the FC is unconstitutional having regard to inter aliaarts 4(1) and 121(1) of the , and as a result null and void and of no legal effect;
(vii) A declaration that the 1st respondent and/or 2nd respondent are under a constitutional duty pursuant to art 150(3) of the FC to forthwith advise the Yang di-Pertuan Agong (YDPA) to forthwith summon a meeting of Parliament for the Proclamation of Emergency and Ordinance to forthwith be laid before both Houses of Parliament for all necessary and appropriate resolutions to be passed in accordance with the mandatory provisions of art 150(3) of the ;
(viii) An order for mandamus directing the 1st respondent to forthwith lay the Proclamation of Emergency dated 11 January 2021 published in the Federal Government Gazette PU(A) 7/2021 on 12 January 2021 (Proclamation of Emergency) and the Ordinance before both Houses of Parliament for all necessary and appropriate resolutions to be passed in accordance with the mandatory provisions of art 150(3) of the FC ;
(ix) Further or in the alternative, an order for mandamus directing the 1st respondent to forthwith advise the YDPA to forthwith summon a meeting of Parliament for the Proclamation of Emergency and the Ordinance to forthwith be laid before both Houses of Parliament for all necessary and appropriate resolutions to be passed in accordance with the mandatory provisions of art 150(3) of the FC ;
(x) No order as to cost; and
(xi) Such further and/or other relief that this Honourable Court deems fit, just and proper and/or otherwise appropriate to be granted.
[2] After detailed considerations of the applicants' application for leave for Judicial Review (encl 1), the Statement filed pursuant to O 53 r 3(2) of the ROC 2012, the Affidavit in Support, written submissions as well as oral submissions by both parties, I dismissed the applicants' application in encl 1. This judgment contains the full reasons for my decision.
[3] The relevant cause papers before this Court are as follows:
3.1 Application for Judicial Review dated 26 January 2021 ;
3.2 Statement pursuant to O 53 r 3(2) of the ROC 2012 dated 26 January 2021 (Statement);
3.3 Affidavit in Support affirmed by Salahuddin Ayub on 25 January 2021 (Affidavit in Support); and
3.4 Supplementary Affidavit affirmed by Muhammad Hiqmar Danial Hidzir on 29 January 2021.
Background Facts
[4] The background facts of this case are largely undisputed. The narration of the background facts herein is adopted with and/or without modifications from the Statement and Affidavit in Support.
[5] At all material times, the applicants are members of the Dewan Rakyat and Dewan Negeri as follows:
5.1 The 1st applicant, is a Member of Dewan Rakyat for Pulai and a M
